ELSY v. SARITHA SHAJI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944** **RP NO. 267 OF 2022** **AGAINST THE JUDGMENT DATED 25.8.2021 IN RSA 490/2021 OF HIGH COURT** **OF KERALA** ## **REVIEW PETITIONER/APPELLANT/RESPONDENT/DEFENDANT:** ELSY AGED 61 YEARS HOUSE WIFE, W/O.THOMAS, THEKKINIYATH HOUSE, THURATHOOR KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK, PUTHENVELIKKARA P.O., PIN - 683 594, ERNAKULAM DISTRICT. BY ADV P.R.SHAJI ## **RESPONDENT/APPELLANT/PLAINTIFF:** SARITHA SHAJI AGED 49 YEARS W/O.SHAJI, KOCHUPARAMBIL HOUSE, VELLIKULANGARA VILLAGE, DESOM, MUKUNDAPURAM TALUK - 688 684. BY ADV.N.L.BITTO **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON** **29.07.2022, THE COURT ON 23.8.2022 DELIVERED THE FOLLOWING:** RP No.267 of 2022 in RSA No.490 of 2021 2 ## **O R D E R** Dated this the 23[rd] day of August, 2022 This review petition has been filed by the appellant in RSA No.490/2021 which was directed against the judgment and decree in A.S. No.79/2017 on file of Additional District Court - II, North Paravur, which in turn arise out of the judgment and decree in O.S No.346/2013 of the Munsiff's Court, North Paravur. 2. O.S No.346/2013 was filed for return of advance amount of Rs.4,00,000/-. The case of the plaintiff is that, there was an agreement for sale with respect to the plaint schedule property between the plaintiff and the defendant. Thereby, the plaintiff agreed to purchase the plaint schedule property from the defendant for a total consideration of Rs.10,10,000/- as per the written agreement dated 10.05.2012, Rs.4,00,000/was paid towards advance on the same day. 3. According to the learned counsel for the plaintiff, though she was ready and willing to perform her part of the RP No.267 of 2022 in RSA No.490 of 2021 3 contract and approached the defendant with due balance sale consideration, defendant evaded execution of the sale deed and being convinced of the intention of the defendant to not to execute the sale deed as per the agreement, he issued a lawyer notice seeking for return of advance amount. Since the liabilities over the properties is not cleared, she did not want execution of sale deed with liabilities. Since, the defendant did not comply the demand the suit was filed seeking for return of advance amount. 4. The defendant filed written statement contending that the plaintiff was never ready and willing to perform her part of the contract and she never approached the defendant with the balance sale consideration. The defendant cleared all the liabilities of the plaint schedule properties within 15 days of receipt of advance amount and the plaintiff was intimated but she did not show any interest in proceeding with the execution of sale deed. The defendant sustained loss and damages due to the default of the plaintiff in performing her part of her contract and hence, she is entitled to forfeit the advance amount of Rs.4 lakhs. RP No.267 of 2022 in RSA No.490 of 2021 4 5. PW1 and PW2 examined and Ext.A1 to A4 marked from the side of the plaintiff. DW1 examined and Ext.B1 to B6 marked from the side of the defendant. On evaluating the facts and circumstances and evidence adduced, the learned Munsiff found that there was no evidence to prove that the plaintiff was ready and willing to purchase the property by giving balance sale consideration and the suit was filed on the next day of issue of notice. Hence, it was found that there is no evidence to conclude that plaintiff was ready and willing to perform the contract and defendant had discharged the liabilities of the properties and it was difficult for him to pay back the money, since the amount was paid in the bank and ultimately, the suit was dismissed. 6. Against which A.S. No.79/2017 was filed before the Additional District Judge-II, North Paravur. The learned Additional District Judge found that in a suit for return of advance amount, the question is not the readiness or willingness of the plaintiff to perform his part of the contract and the question is whether the defendant suffered any loss or damage due to nonperformance of contract. Any agreement for RP No.267 of 2022 in RSA No.490 of 2021 5 sale even if stands unperformed due to default of plaintiff, the defendant is liable to return the advance amount to the plaintiff unless and until he establishes the loss or damage due to nonperformance of the contract by the plaintiff. Accordingly, the appeal was allowed and suit was decreed. 7. Against which the defendant approached this Court in second appeal. A learned Single Judge of this Court, as per judgment dated 25.8.2021 dismissed the appeal finding that there is no substantial question of law for consideration in this case. Aggrieved by the same the petitioner filed the present review petition. 8. According to the learned counsel, when the case came up for admission, this Court directed the petitioner to try for settlement through mediation and directed the Registry to issue notice to the respondent and for the limited purpose of mediation and parties were directed to appear before the Mediation Centre on 25.8.2021. It is contended that on that day the petitioner and her counsel appeared before the Nodal Officer of the High Court Mediation Centre. Since, the matter was listed in the mediation centre, he was under the RP No.267 of 2022 in RSA No.490 of 2021 6 impression that the appeal will not be taken up in the court. But, on verification of the proceedings on the next day, he came to know that the appeal dismissed with a detailed order. Hence, the review petition. 9. Notice was issued to the respondents. Both sides were heard. 10. The main contention of the learned counsel for the petitioner is that without hearing him the impugned judgment was passed by this Court. On going through the judgment passed by this Court, it is seen that petitioner's counsel argued that the plaintiff has no cause of action to institute the suit and the suit is premature. It was also contented by her that the defendant was not in a position to return the money in view of the attachment order in force in respect of the property covered under the agreement. So, finding that the receipt of amount is admitted by the petitioner/defendant applying the principles of unlawful encroachment as envisaged under Indian Contract Act, it was found that petitioner is bound to return the money to the plaintiff and that alone was done by the Appellate Court. It is further found that there is no substantial RP No.267 of 2022 in RSA No.490 of 2021 7 question of law involved to entertain the appeal and after having heard at length the court felt that the matter can be resolved through mediation than admitting the appeal on substantial question of law and hence, notice was issued to the opposite side for resolving the matter through mediation. Accordingly, the learned counsel for the plaintiff appeared and plaintiff was also present before the court. But the appellant/defendant was absent and evaluating the facts and circumstances that the 1[st] Appellate Court has taken a probable view directing the appellant to refund the advance sale consideration applying the principles of unlawful encroachment finding that there is no substantial question of law involved in this case, the appeal was dismissed. 11. The learned counsel for the petitioner relies on **N.L.Lalan v. V.A.John [1972 KLT 132],** wherein while dealing with Section 30 of the Workmens Compensation Act, 1923, and its scope and ambit and discussing the substantial question of law its meaning and amplitude, it has been held by Hon’ble Justice V.R. Krishna Iyer, that “there must be something substantial about the substantial question of law RP No.267 of 2022 in RSA No.490 of 2021 8 and what is contemplated is not a question of law alone, it must also possess the attribute of substantiality.” 12. **Shipping Corporation of India Ltd. v. Kandaswamy [1986 KLT 924],** relied on by the counsel was a case in which the suit was filed for permanent injunction to restrain the officers from initiating disciplinary proceedings or holding any enquiry against the plaintiff pursuant to a memorandum. The main contention of the plaintiff was that the disciplinary authority as far as the plaintiff is concerned, is the President of India and not the defendant. The question arouse whether the alleged cause of action as a whole or any part of it has arisen within the jurisdiction of the court where the suit was filed. Finding that the cause of action as a whole or any part as it has arisen within the jurisdiction of the court where the suit has been filed, it was found that the court has got jurisdiction. So, the facts situation of that case is also not relevant in the present case. 13. In the case at hand, the suit was one for return of advance amount. The main contention of the learned counsel for the petitioner is that there is no cause of action for filing RP No.267 of 2022 in RSA No.490 of 2021 9 the suit and it has been so found by the learned Munsiff. But as has been rightly pointed out by the 1[st] Appellate Court that the entire discussion of the learned Munsiff was as if the suit has been filed for specific performance of contract and in a case of return of advance amount the cardinal question is whether the defendant/seller sustained any loss or damage due to the nonperformance of contract and only if the defendant prove such loss or damage, he would be entitled to forfeit the advance amount towards such loss or damage in the event of contract failing due to nonperformance by the plaintiff/buyer. 14. It has been found by the 1[st] Appellate Court that the plaintiff failed to prove that she was ready and willing to perform her part of the contract. But apart from the readiness and willingness on the part of the plaintiff in a suit of this nature question is whether the defendant succeeded to prove the loss or damage due to nonperformance of the contract by the plaintiff **.** So, also it is the well established principles of law that even if any agreement or sale stands unperformed even due to the default of the plaintiff/proposed purchaser, the defendant/proposed seller is liable to return the advance RP No.267 of 2022 in RSA No.490 of 2021 10 amount to the plaintiff unless and until the defendant established that he or she had sustained any loss or damage due to nonperformance of contract by the plaintiff, then only he or she is entitled to forfeit the advance amount towards such damages. (See **Abdulla v. State of Kerala 2001 (3) KLT 103** ) 15. **Union of India v. Rampur Distillery and Chemical Co.Ltd. [AIR 1973 SCC 1090],** Apex Court observed that the party to a contract taxing security to deposit from the other party to ensure due performance of the contract is not entitled to forfeit the deposit on ground of default when no loss is caused to him consequence of such default. When the question is one for forfeiture of security deposit in case of breach of contract such sum does not ipso facto go to the respondents. The respondents have to prove that they have sustained any legal injury due to the breach committed by the opposite side. 16. It has been found by the 1[st] Appellate Court that apart from a stray sentence in the written statement that she sustained huge loss and damage due to nonperformance of RP No.267 of 2022 in RSA No.490 of 2021 11 contract by the plaintiff, there is no specific pleading in the written statement as to the amount of loss or the manner in which she sustained the loss. Only during evidence two contentions were put forward to the effect that out of the advance amount Rs.2 lakhs was paid by her to the bank for discharging the liability over the property and secondly that believing the performance of this contract she had an oral agreement with one Mr.Pauly, S/o Devassy for purchase of 5 cents of land and towards that transaction she had paid Rs.1,50,000/-as advance. But there is no pleadings in the written statement in that regard. Without pleading any amount of evidence adduced cannot be accepted. It has also been found that even if Rs.2 lakhs has been paid to clear the liability it cannot be found as a loss to the defendant since the clearing of liability would only be a gain. With regard to the other loss of paying advance amount to one Mr.Pauly apart from her interested testimony there is no other evidence. So, that contention was also repelled by the 1[st] Appellate Court. So, ultimately, it was found that the defendant could not establish any loss or injury sustained by her due to the nonperformance RP No.267 of 2022 in RSA No.490 of 2021 12 of contract by the plaintiff and hence legally she was not entitled to forfeiture of the amount received as advance from the plaintiff. Hence, the 1[st] Appellate Court has appreciated the facts and law in a correct perceptive and this court while disposing the RSA has rightly found that there is no substantial question of law emerges for consideration in the second appeal accordingly it was dismissed. So, also the power of review under Order 47 Rule 1 is very limited. 17. **Kamlesh Verma v. Mayawati and Others [2013 (8) SCC 320],** it has been held that review of earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In **Parsion Devi and Others** **v. Sumitri Devi and Others [1997 (8) SCC 715],** it has been held that a judgment may be open for review if there is a mistake or error apparent on the face of record. 18. Hence, the court can exercise the power of review only when there is an error apparent on the face of record or discovery of new or important matter or evidence which after exercise of due delegance was not within the knowledge and RP No.267 of 2022 in RSA No.490 of 2021 13 could not be produced at the time when the matter was originally heard. Here, the petitioner/defendant could not point out any error apparent on the face of record or any other sufficient reason for enabling this Court to exercise the limited power of review vested with this Court. So, review petition found to be devoid of any merit and hence dismissed. **Sd/M.R.ANITHA JUDGE** SMF